The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #28.
Plaintiff filed this pro se action on or about September 17, 2003 seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that while an inmate at the Elmira Correctional Facility ("Elmira"), his rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution were violated.*fn1 Id. Currently before the Court is plaintiff's motion for summary judgment*fn2 (Dkt. #42) and defendants' cross-motion for summary judgment (dismissal of defendants Goord, Leclaire and McGinnis) (Dkt. #59). For the following reasons, plaintiff's motion for summary judgment is denied and defendants' cross-motion for summary judgment (dismissal of defendants Goord, Leclaire and McGinnis) is granted.
Plaintiff, proceeding pro se, filed this action on or about September 17, 2003, against defendants Thomas A. Wichtowski, William Witkowski, Maurizio Perfetti, David J. Makara, Gregory A. Harvey, Floyd Fuller, S. Wenderlick, Donald Selsky, M. McGinnis, S. West, Lucien J. Leclaire, Glenn S. Goord, Richard W. Rich, Jr. and James A. Kain pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages. Dkt. #1.
In his First Claim, plaintiff alleges that he was assaulted and beaten by defendants Wichtowski, Witkowski, Perfetti, Makara, and Harvey on October 31, 2002, and that defendant Fuller did nothing to stop or intercede. Id. Specifically, plaintiff alleges that on October 31, 2002, he was given the wrong breakfast and that he had experienced this problem repeatedly. Id. Plaintiff further alleges that he told defendants Perfetti and Witkowski that he had received the wrong breakfast and they responded "so" and tried to walk away from plaintiff's cell. Id. Plaintiff put his hand in the feed-up hatch in an effort to get the defendants to call the sergeant so that the sergeant would ensure that plaintiff would receive the correct diet. Id. Plaintiff alleges that as he had his hand in the feed-up hatch, M. Perfetti malicious [sic] and sadistically closed the feed-up hatch on plaintiff's hand numerous times as W. Witkowski started malicious [sic] and sadistically hitting plaintiff's hand with his baton [what is violate to "D.O.C.S." Rules [sic] ] causing multipe [sic] bruise [sic], black and blues, swelling, bleeding and plaintiff couldn't move his hand for about 6-weeks without feeling pain in his hand.
Dkt. #1, ¶ 4. Thereafter, plaintiff alleges that defendant Perfetti went to his cell and asked if plaintiff wanted to see the nurse and when plaintiff indicated that he did, defendants Wichtowski, Witkowski, Perfetti, Makara and Harvey assaulted him. Id. at ¶¶ 4-5. Plaintiff further alleges that he was hand-cuffed and as he was being moved back into his cell he was kicked in the face and hit in the head by defendant Harvey causing swelling and causing him to blackout. Id. at ¶ 7. In addition, plaintiff maintains that while defendant Makara held plaintiff's hands away from his body, the other defendants, Wichtowski, Witkowski, Perfetti and Harvey, maliciously and sadistically beat plaintiff in the face, head, upper body, back and legs. Id. at ¶¶ 8-12. The balance of plaintiff's First Claim alleges that defendants S. Wenderlick and D. Selsky denied him due process when defendant Wenderlick refused to call plaintiff's witnesses during a subsequent disciplinary hearing and sentenced him to 24 months in the Special Housing Unit ("SHU"), loss of good time and a restricted diet in violation of Departmental rules and when defendant Selsky upheld the disciplinary finding and sentence. Id. As noted above in footnote 1, by Decision and Order filed April 12, 2004, United States District Judge William M. Skretny dismissed plaintiff's due process claims (First Claim) against defendants Wenderlick and Selsky. Dkt. #4. Accordingly, those claims are not before this Court.
In his Second Claim, plaintiff alleges that he was sentenced to 270 days in the SHU and a restricted diet following a disciplinary hearing that was held in relation to May 30, 2001 disciplinary charges. Dkt. #1. Plaintiff further claims that he was found guilty despite a videotape that showed that he did not assault a Correctional Officer as charged and that Departmental rules prohibit a sentence of SHU and a restricted diet for an assault. Id. Plaintiff alleges that he wrote to defendants West, McGinnis, Goord and Leclaire complaining about the sentence imposed. Id. With respect to plaintiff's Second Claim, to the extent that it could be construed to allege an Eighth Amendment claim against defendants West, McGinnis, Goord and Leclaire, Judge Skretny ordered that plaintiff's claim be dismissed. Moreover, Judge Skretny ordered "the remaining claims alleged in the Second Claim for Relief relating to the disciplinary hearing and the sentenced imposed may, at this time, proceed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(I) and 1915A(b) against Defendants West*fn3, McGinnis, Goord and Leclaire." Dkt. #4, pp.7-8.
Finally, Judge Skretny dismissed plaintiff's Third Claim in its entirety because the defendants therein, plaintiff's criminal defense attorney, Richard W. Rich, Jr., at his January 2001 criminal trial and James A. Kain, an investigator for the Chemung County Public Defender's Office, "are not state actors for purposes of liability under 42 U.S.C. § 1983." Dkt. #4, p.8.
In support of his motion for summary judgment, the plaintiff argues that a default judgment should be entered because the defendants did not answer the complaint in a timely manner. Dkt. #43. Notwithstanding plaintiff's assertion that the defendants failed to timely answer the complaint, on July 9, 2004, defendants, Goord, Wichtowski, Witkowski, Harvey, Fuller and McGinnis, moved for an extension of time to answer the complaint to on or before August 20, 2004. Dkt. #5. Thereafter, on August 17, 2004, defendants, Goord, Wichtowski, Witkowski, Perfetti, Harvey, Fuller, McGinnis and Leclaire, filed their answer to the complaint. Dkt. #14. As noted above in footnote 3, defendant West was never properly served with a copy of the complaint and has never appeared in this action. Finally, with respect to defendant Makara, defendant Makara received a copy of the complaint by mail on July 5, 2004. Dkt. #62, ¶ 5. Due to an administrative error, however, defendant Makara did not request representation from the Attorney General's Office until late August 2004, at which time an answer to the complaint was immediately filed on his behalf on August 30, 2004. Id.; Dkt. #24.
Thus, defendants argue that the sole defendant for which there is even a colorable basis to seek a default judgment is defendant Makara. However, the defendants maintain that because defendant Makara acknowledged service by mail, there was never any basis to conclude that he had any intention of not defending the lawsuit. Dkt. #62, ¶ 6. Indeed, the delay in answering the complaint was a mistake in failing to timely request representation from the Attorney General's Office. Id. In his motion for summary judgment, wherein he again*fn4 seeks the entry of a default judgment, plaintiff has failed to demonstrate any prejudice to his claim that was suffered as a result of the minimal delay in the filing of defendant Makara's answer to the complaint. Id. Indeed, it is ...